TESSY KURUVILLA Vs. AGRL. INCOME TAX OFFICER

JUDGEMENT

(1.) THE petitioner is an assessee to Agrl. IT. For the year 1976 -77 she was assessed to Agrl. IT by Ext. P1 order dt. 6 -6 -1979. The order was passed under s. 18(4) of the Act, since the petitioner neither filed the return nor filed any objections to the pre -assessment notice. The revision filed before the 2nd respondent was dismissed by Ext. P2 order dt. 22 -10 -1981. According to the petitioner both Exts. P1 and P2 orders are illegal and violative of natural justice. Before passing Ext. P1 assessment order the objections filed by her were not considered. Before passing Ext. P2 order no notice was served on her and she was not heard. No sufficient opportunity was afforded to the petitioner to produce relevant documents. In this original petition, the petitioner assails Exts. P1 and P2 orders. The petitioner also attacks s. 34, 2nd proviso to the Agrl. IT Act as ultra vires and violative of Art. 14 of the Constitution of India. It is stated that there is no obligation for the revisional authority to hear the petitioner before passing an order in revision. In the revision, no prejudicial order shall be passed without hearing the petitioner or giving her reasonable opportunity. But an order declining to interfere shall not be deemed to be prejudicial to the assessee. So, when an order is passed in revision declining to interfere, the assessee need not be heard or given an opportunity for being heard. The assessee has no right to resort to this Court under s. 60(2) of the Agrl. IT Act in view of s. 34 second proviso and s. 60(2) of the Act. This is ultra vires and violative of "fair hearing" and Art. 14 of the Constitution of India.

(2.) ON behalf of the respondents, a detailed counter -affidavit has been filed dt. 10 -4 -1984. Exts. P1 and P2 orders are sought to be sustained on the ground that they were passed after due notice and opportunity given to the petitioner and the assessment was completed under s. 18(4) of the Act in view of the default committed by the petitioner. It is also definitely stated in paragraphs 3 and 4 of the counter -affidavit that many opportunities were afforded to the petitioner and she did not avail of the same. The contention that no reasonable opportunity was afforded to the petitioner before rendering Exts. P1 and P2 is without force. It is also denied that the 2nd proviso to s. 34 of the Act is ultra vires or violative of Art. 14 of the Constitution of India.

(3.) SECS . 34(1) and (2) of the Agrl. IT Act is as follows :